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Adcox v. Brennan

United States District Court, D. Kansas

June 2, 2017

Melissa K. Adcox, Plaintiff,
Megan Brennan, Postmaster General, United States Postal Service, Defendant.



         Plaintiff Melissa K. Adcox is a rural carrier for the United States Postal Service. In this lawsuit, she alleges claims of gender-based disparate treatment; gender-based hostile work environment; and retaliatory hostile work environment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., all arising from the conduct of the customer service manager of the post office where she is employed. This matter is presently before the court on defendant's motion for summary judgment on plaintiff's claims (doc. 60). As will be explained, the motion is granted in part and denied in part.

         I. Facts

         The following facts are uncontroverted, stipulated in the pretrial order, or related in the light most favorable to plaintiff as the nonmoving party. In 2003, plaintiff began her employment with the United States Postal Service as a rural carrier associate at the Wyandotte West post office in Kansas City, Kansas. She remains employed at that office today as a rural carrier. The first several years of plaintiff's employment passed without incident. In March 2010, Randy McHenry, who had a lengthy career with the Postal Service, came to the Wyandotte West post office as the customer service manager responsible for day-to-day operations in the office. The record reflects that plaintiff and Mr. McHenry harbored a mutual dislike for one another.

         On October 1, 2010, plaintiff initiated an EEO complaint against Mr. McHenry, who became aware of that complaint sometime that fall. In that complaint, which was filed in January 2011, plaintiff alleged that Mr. McHenry, on one occasion, had discriminated against her based on her gender. Plaintiff contends that, after she initiated her EEO complaint, Mr. McHenry began a campaign of harassment against her. The record, viewed in the light most favorable to plaintiff, reflects nearly 60 separate “incidents” of alleged harassment by Mr. McHenry. Plaintiff asserts, for example, that Mr. McHenry engaged in “job discussions” or “pre-disciplinary interviews” with her about unexcused absences, misdeliveries of the mail, mail delivery delays, “time wasting practices, ” running a stop sign, parking on unsafe roads, leaving the office during break time, and talking to other carriers while loading her vehicle.[1] She further asserts that Mr. McHenry required her to deliver 550 double-wrapped phone books in one day along with her regular load but permitted all other carriers to deliver those books over the course of 3 days. She asserts that Mr. McHenry moved the start time for rural carriers from 7:30am to 8:00am during the hottest week of the year; that he denied her request for annual leave despite the fact that her request was made before any other employee's request; that he required her to submit medical documentation of the need for sick leave; that he announced to everyone on the workroom floor that plaintiff was “AWOL” when she called in sick; that he refused to let plaintiff (and other carriers) eat lunch at a certain restaurant; that he issued plaintiff a 7-day “paper” suspension when plaintiff left work without permission;[2] and that he followed and/or observed plaintiff on her route far more than he observed any other carrier. In the midst of these incidents and based on many of these incidents, plaintiff initiated a second EEO complaint in January 2012. Mr. McHenry learned about that complaint in March 2012 and it was filed in May 2012. According to plaintiff, Mr. McHenry engaged in a pattern of harassment-including the types of incidents described above-from February 2011 through October 2012. Mr. McHenry retired from the postal service in January 2017.

         Additional facts will be provided as they relate to the specific arguments raised by the parties in their submissions.

         II. Summary Judgment Standard

         “Summary judgment is appropriate if the pleadings, depositions, other discovery materials, and affidavits demonstrate the absence of a genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Water Pik, Inc. v. Med-Systems, Inc., 726 F.3d 1136, 1143 (10th Cir. 2013) (quotation omitted); see Fed. R. Civ. P. 56(a). A factual issue is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Water Pik, Inc., 726 F.3d at 1143 (quotation omitted). “The nonmoving party is entitled to all reasonable inferences from the record; but if the nonmovant bears the burden of persuasion on a claim at trial, summary judgment may be warranted if the movant points out a lack of evidence to support an essential element of that claim and the nonmovant cannot identify specific facts that would create a genuine issue.” Id. at 1143-44.

         III. Disparate Treatment Claims

         In the pretrial order, plaintiff asserts that she suffered gender-based disparate treatment between March 2011 and September 2012. To establish a disparate treatment claim, a plaintiff must present evidence that he or she suffered an adverse employment action. See Luster v. Vilsack, 667 F.3d 1089, 1095 (10th Cir. 2011). But plaintiff fails to identify in the pretrial order any specific discrete acts of discrimination or adverse employment actions that she suffered; she alleges only that she was subjected to adverse “working conditions.” Moreover, plaintiff's factual contentions in the pretrial order relate solely to her hostile environment claims. Construing any “disparate treatment” claims to be entirely duplicative of plaintiff's gender-based hostile work environment claim, then, defendant's motion for summary judgment mentions any gender-based disparate treatment claims only in passing. Specifically, defendant contends that the events that form the basis of plaintiff's gender-based hostile work environment claim would not survive summary judgment “if [plaintiff] asserted them as discrete claims.” In her response, then, plaintiff suggests that summary judgment on her disparate treatment claims must be denied because defendant has not moved for summary judgment in the first instance and, in any event, because the record contains factual issues that preclude summary judgment on the merits. The court disagrees and grants summary judgment on plaintiff's gender-based disparate treatment claims.

         The fact that defendant has not moved for summary judgment on plaintiff's disparate treatment claims does not mandate that those claims survive summary judgment. As highlighted by defendant in her reply brief, the pretrial order fails to set forth a claim of gender-based disparate treatment that is separate and distinct from plaintiff's gender-based hostile work environment claim. No discrete acts of discrimination are identified in the pretrial order and no damages stemming from any discrete acts are claimed. In the “factual contentions” portion of the pretrial order, plaintiff describes only her hostile work environment claims. Thus, any gender-based disparate treatment claim asserted by plaintiff has been waived. Wilson v. Muckala, 303 F.3d 1207, 1215 (10th Cir. 2002) (claims or theories not included in the pretrial order are waived).

         In any event, summary judgment is also appropriate because a viable claim of disparate treatment must be predicated on an adverse employment action. EEOC v. C.R. England, Inc., 644 F.3d 1028, 1039-40 (10th Cir. 2011). In general, only acts that constitute a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits will rise to the level of an adverse employment action. Haynes v. Level 3 Communications, LLC, 456 F.3d 1215, 1222 (10th Cir. 2006). However, the phrase “adverse employment action” is not necessarily “limited to such acts.” Hillig v. Rumsfeld, 381 F.3d 1028, 1033 (10th Cir. 2004). The Circuit has held, for example, that an action that causes harm to future employment prospects may rise to the level of an adverse employment action. Id. at 1032 (citing Berry v. Stevinson Chevrolet, 74 F.3d 980, 986 (10th Cir. 1996)). But “a mere inconvenience or an alteration of job responsibilities” does not constitute an “adverse employment action.” C.R. England, 644 F.3d at 1042-43. Accordingly, plaintiff must show that the alleged adverse action caused more than “de minimis harm” to or a “de minimis impact” upon an employee's job opportunities or status. Hillig, 381 F.3d at 1033.

         In an effort to establish that she suffered one or more adverse employment actions for purposes of her disparate treatment claims, plaintiff contends that Mr. McHenry regularly interrupted her work; interrupted her breaks; followed her “making gagging noises” on one occasion; and threw mail at her on two occasions.[3] None of these acts rises to the level of an “adverse employment action” as that phrase has been construed by the Circuit. There is no evidence that any of these acts had any bearing whatsoever on plaintiff's job status or job opportunities and plaintiff does not suggest otherwise. Plaintiff asserts only that Mr. McHenry's conduct “affected her ability to have a normal work experience” which, of course, is not the appropriate standard for analyzing whether an adverse employment action has occurred.[4] While plaintiff also contends that she received “lopsided discipline, ” plaintiff does not contend that any of the job discussions, pre-disciplinary interviews, Letters of Warning or “paper” suspensions that she received had any impact on her pay, benefits, job status or job prospects.[5] In the absence of such evidence, plaintiff cannot establish that any discipline she received constituted an “adverse employment action.” See Medina v. Income Support Div., State of New Mexico, 413 F.3d 1131, 1137 (10th Cir. 2005) (warning letter did not constitute adverse employment action where letter did not adversely affect the terms or conditions of the plaintiff's employment; letter did not affect the likelihood that the plaintiff would be terminated, did not undermine the plaintiff's current position and did not affect the plaintiff's future employment opportunities). Summary judgment on plaintiff's gender-based disparate treatment claims is required.

         IV. Gender-Based ...

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